Pennsylvania Supreme Court Justices Can’t Agree On Admissibility of Hearsay At Preliminary Hearing

Is Hearsay Admissible at a Preliminary Hearing? 

The Pennsylvania Supreme Court has just dismissed the appeal in Commonwealth v. Ricker, thereby failing to decide the issue of how much hearsay may be admitted at a preliminary hearing in order for the Commonwealth to establish a prima facie case. The use of hearsay by the prosecution at a preliminary hearing has long been a heavily contested issue. For years, the rule was that the prosecution could introduce some evidence via hearsay testimony in order to establish a prima facie case, but the prosecution could not have a defendant held for court and a case sent to the Court of Common Pleas for trial without at least some live testimony by a witness with personal knowledge.

The Use of Hearsay at the Preliminary Hearing and the Pennsylvania Rules of Criminal Procedure

That basic rule began to change in 2011 when the Pennsylvania Supreme Court issued new Rules of Criminal Procedure expressly allowing for the use of hearsay to prove the elements of ownership and non-permission in cases involving property crimes like Theft, Burglary, and Robbery. In order to prove Theft, the prosecution would normally have to show that the defendant took someone else’s property without permission and did not intend to give it back. This would often require two witnesses. First, the complainant who had the property stolen would have to testify that something that person owned was stolen and that the complainant did not give the person who took the property permission to take it. Second, the police officer who arrested the defendant in possession of the stolen property would testify that the officer arrested the defendant and the defendant had the stolen goods.

By permitting ownership and non-permission testimony to come in through hearsay, the rule allowed the Commonwealth to call only the professional police witness, who is more likely to appear for court because it is part of his or her job, to testify at the preliminary hearing. This allowed more cases to survive the preliminary hearing because the complaining witness would only be required for trial. Of course, many cases do not go to trial, leaving many defendants forced to decide whether or not to plead guilty without any meaningful chance to challenge the evidence against them. Before the Pennsylvania Supreme Court adopted the rule, judges would frequently dismiss cases because the owner of the property or house involved in a Burglary or Theft would fail to appear for court. The rule was an attempt to provide the defendant with a continued right to a meaningful hearing while at the same time lessening the burden on victims and witnesses to miss work and other obligations for multiple pre-trial court dates.

Shortly after enacting the 2011 rule, the Pennsylvania Supreme Court amended the rule to permit other types of testimony to come in to evidence via hearsay. The rule currently reads:

Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

The amended rule expanded the number of cases in which hearsay could be used to prove various elements of the charged offenses at the preliminary hearing. Nonetheless, important protections remained in effect because the rule did not state that hearsay could be used to prove every element or all elements of an offense, and the Pennsylvania Supreme Court had previously ruled that a case could not be held for court at the preliminary hearing based on hearsay alone.

Commonwealth v. Ricker and Commonwealth v. McClelland

That all changed in the recent cases of Commonwealth v. Ricker and Commonwealth v. McClelland. In Ricker, the Pennsylvania Superior Court held that the amended rule permits the Commonwealth to establish a prima facie case at a preliminary hearing based on hearsay alone. Ricker did not address whether the Pennsylvania and United States Confrontation Clauses, which provide criminal defendants with the right to confront (meaning cross-examine) their accusers, prohibit the Commonwealth from establishing a prima facie case at a preliminary hearing based solely on hearsay. Unfortunately, in McClelland, a panel of the Superior Court again found that the Commonwealth could establish a prima facie case based solely on hearsay because the Confrontation Clause does not apply at a preliminary hearing.

The defense appealed in both Ricker and McClelland, and the defense bar has been anxiously awaiting the Pennsylvania Supreme Court’s review of the Ricker decision. Unfortunately, the Pennsylvania Supreme Court just announced that it has decided to punt on the issue. Instead of determining exactly how much hearsay is allowed at a preliminary hearing, the Supreme Court dismissed the appeal in Ricker as “improvidently granted.” In a concurring opinion, Chief Justice Saylor explained that the Court simply could not agree on a result and felt that the Ricker case was not the appropriate vehicle for resolving all of the issues. In a dissenting opinion, Justice Wecht argued that the Court should have resolved the issue either way and that the Superior Court’s holding in Ricker should be reversed. Because the Court has refused to rule on the issue for now, the exact procedure which should be used at a preliminary hearing will continue to be the subject of litigation.  

Despite the PA Supreme Court’s refusal to resolve the issues in Ricker, the Petition for Allowance of Appeal is still pending in McClelland. Therefore, it remains a possibility that the Court could still resolve these issues. The Court could provide an authoritative ruling on exactly how much hearsay is permitted at a preliminary hearing either by revisiting the issue in McClelland or by engaging in the rule-making process to make the Rules of Criminal Procedure clearer. In the absence of action by the Court, criminal defendants throughout Pennsylvania will remain subject to a wide variety of preliminary hearing procedures and subject to a severe disadvantage in terms of the defense’s ability to test the strength of the Commonwealth’s case at the preliminary hearing.

Most Judges in Philadelphia Require More Than Just Hearsay

In Philadelphia, most judges continue to require some level of non-hearsay testimony, and it is important to note that the rules and the case law do not require a judge to permit the Commonwealth to proceed based solely on hearsay. Instead, McClelland instructs judges to continue evaluating and analyzing the reliability of the Commonwealths’ evidence. Given the high volume of cases, it seems likely that this practice will continue for most cases. Further, many of the most serious cases in Philadelphia such as Attempted Murder and Robbery cases are now charged by way of a secret (and probably even more unfair) Indicting Grand Jury at which the defense is not present or able to cross-examine witnesses instead of by preliminary hearing. In the suburban counties, magistrates are more likely to allow the prosecution to proceed based solely on hearsay. In the short term, the practice in Philadelphia may not change dramatically. In the long term, it remains to be seen whether prosecutors will continue to call witnesses at preliminary hearings and whether the Pennsylvania Supreme Court will revisit this issue.

AWARD-WINNING PHILADELPHIA CRIMINAL DEFENSE LAWYERS

Goldstein Mehta LLC Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients against a wide variety of criminal charges in preliminary hearings and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys. 

PA Superior Court Continues to Struggle With Meaning Of "Stop"

Motions to Suppress in Gun and Drug Cases

The first line of defense to criminal charges like gun possession or drug possession is often the Motion to Suppress. If the police stopped or searched you or your belongings without reasonable suspicion or probable cause, it may be possible to have the evidence suppressed. Once the evidence is suppressed, the Commonwealth would not be able to proceed to trial in a case involving a possessory offense, and the case could be thrown out. In cases involving illegal stops or searches of pedestrians, the first thing that the defense must typically show is that the police actually stopped or “seized” the defendant under either Article I Section 8 of the Pennsylvania Constitution or the 4th Amendment of the United States Constitution. 

What makes a stop a stop? 

As recently as three months ago, in the case of Commonwealth v. Morrison, the Pennsylvania Superior Court concluded that when a police officer says stop, that means stop. Thus, a reasonable person would not feel free to leave, and the encounter rises to the legal level of a Terry stop. In the case of Commonwealth v. Newsome, a different panel of the Superior Court has reached a different conclusion. In Newsome, the Superior Court held that the mere use of the word “stop” does not necessarily transform a police encounter into a Terry stop requiring reasonable suspicion or probable cause. Instead, whether police conduct rises to the level of a stop depends on the totality of the circumstances and the specific facts of each case. 

Commonwealth v. Newsome

In Newsome, the defendant was arrested in Philadelphia and charged with various Violations of the Uniform Firearms Act (“VUFA”). The defendant moved to suppress the evidence, and the court held an evidentiary hearing on the motion to suppress. At the hearing, a Philadelphia Police Lieutenant testified that he received an anonymous radio call that a group of males were outside on the 2000 block of Croskey Street passing around a gun. The officer drove to the scene. When he arrived, he saw a group of men huddled together. Two of the men left the group and walked to the other side of the street.

The defendant was one of the two men who crossed the street and began to walk southbound down Croskey street. The officer exited his marked patrol car and asked the defendant to “come here” so he could talk to him, but the defendant refused and continued walking. The officer began to radio for backup to stop the defendant when he observed the defendant reach into his waistband, remove an object that looked like a gun, and place it in a nearby flowerpot. Although the defendant discarded the gun in view of the officer, the gun could be suppressed if the defense could show that the defendant discarded the gun only in response to some sort of unlawful illegal police activity or seizure. 

A different police officer recovered the firearm, and the police arrested the defendant. On cross examination, the officer testified that he approached the defendant and the other men because he believed that they may have been violating Philadelphia’s 10:30 pm curfew. He also testified that he had not seen the defendant with any bulges or weapons on his person and that the defendant did not make any suspicious movements prior to putting the gun in the flowerpot. 

The trial court found the officer’s testimony credible, but it granted the Motion to Suppress. The trial court concluded that by saying stop and asking the defendant to come talk to him, the officer had stopped the defendant and legally seized him. Thus, the officer was required to have reasonable suspicion in order to make a stop, and the officer did not have that level of suspicion because he did not observe the defendant doing anything suspicious. Further, it is well-settled in Pennsylvania that an anonymous radio call cannot provide the basis for reasonable suspicion or probable cause, and even accepting the radio call as true, the radio call did not identify the defendant as the person with the gun.

The Superior Court’s Decision On Appeal

On appeal, the Superior Court reversed the trial court’s decision and concluded that the officer had not legally stopped the defendant. Instead, the officer had attempted to have a mere encounter with the defendant, and a mere encounter need not be supported by any articulable level of suspicion. In determining whether the officer conducted a stop, the court noted that it must evaluate all of the circumstances “evidencing a show of authority or exercise of force, including the demeanor of the police officer, the manner of expression used by the officer in addressing the citizen, and the content of the interrogatories or statements.” Courts must also consider the number of officers present, whether the officer accuses the citizen of criminal activity, the officer’s demeanor and voice, the location and timing of the interaction, the visible presence of weapons on the officer, and the questions asked. Where a reasonable person would not feel free to leave due to the behavior of the officer, the encounter rises to the level of a stop and requires at least reasonable suspicion. 

Here, the Superior Court found that the officer had not stopped the defendant and reversed the decision of the trial court. The Superior Court found that it was only a mere encounter because the officer simply exited the vehicle and asked the defendant to come here so he could talk to him. Although he was in full uniform and in a marked car, he did not engage the lights and sirens, display his weapon, or tell the defendant that he was not free to leave. He also did not block the defendant from moving in any particular direction. He did admit asking the defendant to stop two or three times, but he did not threaten any consequences for non-compliance or use an authoritative tone. Further, the defendant clearly felt no compulsion to stop because he continued walking away. Only after the defendant discarded the gun did the police arrest the defendant. Therefore, the defendant was not seized and officers were not required to have any level of suspicion.

THE EVIDENTIARY CONSEQUENCES OF AN ILLEGAL STOP

Motions to Suppress guns can be difficult to win, but police are required to follow the law. Although judges may be reluctant to suppress illegal firearms and large amounts of drugs, it remains the law that police must have reasonable suspicion or probable cause prior to making a stop or conducting a search. When the police stop or search someone illegally, the Fourth Amendment requires that the evidence be suppressed, meaning that it may not be used at trial. However, it is critical that the defense establish that the police conducted a stop or a search in order to win a Motion to Suppress. Clearly, the Superior Court’s decision in Newsome conflicts with recent precedent in which the Court held that the use of the word stop transforms an encounter into a Terry stop. Therefore, the question of whether a defendant is stopped for purposes of the Fourth Amendment remains highly fact specific. In many cases, a successful motion to suppress will require skillful cross examination by the defense in order to establish that based on the totality of the circumstances, a reasonable person in the defendant’s position would not have felt free to leave. This is particularly true in cases involving “Forced Abandonment” in which a defendant who has been illegally seized discards a gun or drugs prior to being physically restrained by the police. 

AWARD-WINNING PHILADELPHIA CRIMINAL DEFENSE LAWYERS

Goldstein Mehta LLC: Philadelphia Criminal Defense Lawyers

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended clients against gun charges, drug charges, and other possession of contraband cases in preliminary hearings, pre-trial motions to suppress, and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys. 

Read the Opinion: Commonwealth v. Newsome

DUI Defense Update: Challenge to Blood Draw Refusal Evidentiary Presumption Waived by Failure to Raise Issue in Trial Court

DUI Litigation Following Birchfield v. North Dakota

The United States Supreme Court’s decision in Birchfield v. North Dakota created a number of issues in DUI litigation which have not yet been resolved. The Birchfield Court held that at a minimum, states may not impose criminal penalties on motorists who refuse to consent to a blood draw unless police first obtain a search warrant. As a result, much of Pennsylvania’s DUI law has been thrown into disarray, and there are a number of legal issues which still need to be resolved. These issues include the types of warnings and advice that police must provide to DUI suspects prior to requesting consent to a blood draw, whether a suspect’s refusal to consent to a blood draw without a warrant may be used against them as evidence of consciousness of guilt, and whether the police may draw blood from an unconscious Driving Under the Influence suspect.

Evidentiary Consequences of a Blood Draw Refusal

The Pennsylvania Superior Court has just declined to address one of these issues on appeal, finding that a DWI defendant who had not raised an evidentiary issue at trial could not raise it for the first time on appeal. Prior to Birchfield, it was well-accepted that the prosecution could use evidence of a motorist’s refusal to consent to a blood draw against them as evidence of consciousness of guilt. Although the refusal alone would not be enough to convict a criminal defendant, the trial judge or jury could infer from the defendant’s refusal that the defendant believed that evidence of intoxication would show up in the blood results. Thus, a refusal combined with other factors such as poor driving, an odor of alcohol or marijuana, and other evidence of that nature could combine to provide evidence of drunk driving or drugged driving beyond a reasonable doubt.

The Effect of Birchfield

Now that the United States Supreme Court (and Pennsylvania appellate courts) have held that blood draw refusals may not be used to increase the penalties or create new criminal penalties for DUI defendants, there have been a number of challenges to whether the previously mentioned evidentiary presumption of a refusal complies with the requirements of the United States and Pennsylvania Constitutions. In the case of Commonwealth v. Napold, the Pennsylvania Superior Court declined to decide this issue. The Court found that the issue was waived because Napold had not raised the issue by filing a motion in limine prior to trial or objecting to the evidence at trial. Thus, the Superior Court found that Napold had waived the issue by failing to properly preserve it by asking the trial judge to rule on the issue first.

Waiver Doctrine in Pennsylvania Criminal Appeals

Napold provides an illustration of Pennsylvania’s punishing waiver doctrine. Under Pennsylvania law, if the defense fails to object to something or have an issue resolved by the trial court either prior to trial or during trial, then the issue will be forever waived on appeal regardless of how patently inadmissible the evidence may have been. For example, if the prosecution attempts to introduce inadmissible hearsay testimony and the defense fails to object, the defendant cannot then argue that he or she was prejudiced by inadmissible hearsay on appeal. This is because the issue was not raised in the trial court, so the trial judge had no opportunity to correct the error. Most other jurisdictions provide some leeway in terms of an appellate court’s ability to review obvious or clear errors, but Pennsylvania does not.

Notably, the decision in Napold finding that the issue had been waived is different from many of the other Birchfield-related cases which dealt with sentencing. The issue of an illegal sentence may always be raised on appeal regardless of whether the issue was raised in the trial court. Therefore, challenges to Pennsylvania’s statutory mandatory minimum scheme for blood draw refusals were permitted despite the failure to raise those issues in the trial court.

As illustrated by Napold, evidentiary issues must be properly preserved, and whether or not the blood draw refusal can be used as evidence against a defendant will not be resolved by the appellate courts until a later date. Napold illustrates why it is critical even for criminal defense lawyers who only handle trials to be aware of what is happening in the appellate courts so that the defense attorneys can preserve issues in case the appellate courts rule in favorable ways for the defense.

Award-Winning Philadelphia Criminal Defense Attorneys and DUI Defense Lawyers

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

If you are facing DUI charges or under investigation for any criminal defense, you need the assistance of one of our award-winning Philadelphia criminal defense lawyers. We have successfully represented thousands of clients, and we will use our skill and experience to help you achieve the best possible result. Call 267-225-2545 for a free criminal defense strategy session with one of our top-rated defense attorneys today.    

Nebbia Orders | Getting a Nebbia Order Lifted in Philadelphia

In most Philadelphia criminal cases, the defendant will have bail set at preliminary arraignment. The defendant’s bail will be based on a number of factors, including ties to the community, previous criminal record, the nature of the charges, the strength of the evidence against the defendant, and other factors such as whether the defendant works or has prior failures to appear for court (bench warrants). Typically, if the defendant can pay 10% of the amount set by the bail commissioner, then the defendant will be released pending trial. However, in some cases, particularly those cases involving large quantities of drugs or financial crimes, the bail commissioner may also place a Nebbia Order on the defendant which can prevent the defendant from being released until the order is lifted.

What is a Nebbia Order?

A Nebbia Order is an order which prevents the defendant from being released even if the defendant can pay bail. Instead, the defense attorney must file a Motion to Lift the Nebbia Order before the defendant posts bail. The Motion must lay out exactly from where the funds which will be used to pay bail are coming in order to show that the funds for bail are not coming from illegal activities like selling drugs or financial fraud. Typically, this will mean showing that whoever is going to pay bail on the defendant’s behalf has either assets, savings, or credit sufficient to be able to afford to pay for the defendant’s bail. Thus, the Nebbia Order prevents the defendant from being released so long as the Order remains in place.

What happens if I post bail when I have a Nebbia Order?

If you post bail while you have a Nebbia Order, you will not be released. Therefore, you should always retain a criminal defense lawyer prior to posting bail so that the Nebbia can be addressed. Otherwise, the Court will likely hold onto the money until the case is over, but the defendant will remain in custody.

How do I get a Nebbia Order lifted?

Petitioning for the lifting of the Nebbia Order is relatively straight-forward, but it does require a criminal defense attorney. The defendant’s attorney must file a Motion to Lift the Nebbia Order and explain exactly where the bail money is going to come from. The defense will also be expected to provide proof that the person who is going to pay bail is going to use legitimate funds to do so. For example, if the bail is going to be paid by taking out a home equity line of credit on a house, the defense would be expected to provide proof that the loan has been approved by a bank.

Once the defense attorney files a Motion to Lift the Nebbia Order, the Court of Common Pleas Motions Judge will typically schedule a hearing in about a week in order to review the Motion and the proof of legitimate funds provided by the defense. In some cases, it may be possible to get a quicker hearing. In many cases, the Commonwealth may be satisfied that the money is indeed coming from a legitimate source and agree. In others, the Commonwealth could object, and then the Motions Judge would be required to rule on whether the defense has met its burden of providing sufficient proof that the funds are legitimate. Once the Judge is satisfied, the Judge will lift the Nebbia Order. The defendant may then post bail and be released pending trial.

Can I get my bail reduced also?

In many cases, if the defense is going to file a Motion to Lift the Nebbia Order, it may be possible to file a written Motion to Reduce Bail at the same time. Because the issue will be heard by the Court of Common Pleas Judge either way, there is often not much to lose (and potentially a lot to gain) by asking the Judge to also review the bail situation in general. Therefore, the defense can file both a Bail Reduction Motion and a Motion to Lift the Nebbia at the same time. Then, the Motions Judge can review both issues at the same time and potentially reduce bail while at the same time lifting the Nebbia Order.

Philadelphia Criminal Defense Lawyers for Bail Reductions and Nebbia Orders

Philadelphia Criminal Defense Lawyers - Goldstein Mehta LLC

The Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC have successfully defended thousands of clients against all types of criminal charges. We have been particularly successful in helping clients who are incarcerated following their preliminary hearing because they cannot afford bail in getting bail reduced, Nebbia Orders removed, and detainers lifted. Our award-winning defense attorneys offer a free criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with one of our Philadelphia Criminal Lawyers today.

Related Articles:

Getting a Bench Warrant Lifted

Motions for Bail Reductions

Detainer Hearings and Detainer Motions